United States District Court, D. Maryland
FRANK M. NEFF Plaintiff
WARDEN R. FOXWELL, OFC. B. SMITH, and ASSIST. WARDEN W. WEST Defendants
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
response to this civil rights complaint, Defendants Warden R.
Foxwell, Officer B. Smith, and Assistant Warden W. West move
to dismiss or for summary judgment, alleging in part that the
complaint is barred by the doctrine of res judicata.
ECF 12. Plaintiff opposes the motion and moves to rescind all
orders requiring payment of filing fees in this case as vyell
as all previous cases filed. ECF 14 & 15. A hearing is
not require to resolve the matters pending. See
Local Rule 105.6 (D. Md. 2016). For the reasons set forth
below, Plaintiffs motion regarding filing fees shall be
denied and Defendants' motion, construed as a Motion to
Dismiss, shall be granted.
"Motion Requesting Court to Dismiss Costs" (ECF
15), Plaintiff asserts that he should not be required to pay
filing fees on any of the cases he filed in this Court
because he has never won any of his cases. He further states
that if this Court does not vacate the Orders requiring
payment of fees he will write to the Senate and have the
undersigned removed from the bench. Id.
Prisoner Litigation Reform Act (PLRA) requires payment of
fees on a monthly basis whenever a civil action or an appeal
is filed in forma pauperis. See 28 U.S.C.
§1915(b). Whether a prisoner-plaintiff is successful in
the case he files has no effect on the requirement for filing
fees. The motion is denied.
complaint as supplemented, Plaintiff Frank Neff alleges that
on February 15, 2015, Officer BT Smith opened the slot in
Neff s cell door, reached inside, put his hands on Neff s
genitals, and squeezed, causing Neff pain. ECF 3 at p. 3.
Neff claims he called the "MD Public Safety" to
report the assault on April 3, 2017. Id. at p. 2. He
further states that there were two witnesses to the assault;
Lt. White and Major Blane. Id. He states that White
"put officer BT Smith off the tier." Id.
Neffv. Warden K. Green, Civil Action RDB-15-502 (D.
Md.), Neff alleged that:
[H]e was sexually assaulted by a correctional officer at ECI
on January 14, 2015, at 11 p.m. ECF 1. Neff claims that
Officer M. Smith asked to see his "private part to see
how big it was." Id. at p. 3. The following
day, Neff asserts Smith sexually assaulted him when Smith
grabbed Neff s "private parts" through the slot in
his cell door. Id. Neff asserts that sexual assault
of an inmate is a crime and nothing was done about the
assault committed against him. Id. As relief, Neff
seeks monetary damages, good conduct credit, and ownership of
the ECI complex. Id.
Civil Action RDB-15-502 at ECF 21, p. 1 (Memorandum Opinion
granting summary judgment).
response to the complaint, Defendants produced evidence by
way of a Serious Incident Report, indicating that Neff
withdrew his complaint regarding the incident and confirmed
that he was satisfied with the manner in which his claim had
been handled. Id. at ECF 17, Ex. 1, p. 11.
the Serious Incident Report investigation established that
Officer Smith was not in the vicinity of Neff s cell at the
time of the alleged incident. Id. This Court then
Plaintiffs assertion that Defendant Warden Green did not
process his claim properly (ECF 19) is belied by the record.
A Serious Incident Report was generated and the claim was
investigated upon receipt of Plaintiffs request slip. ECF 17
at Ex. 1. Far from an attempt to cover up the allegation,
Warden Green documented it, assigned staff to investigate it,
and questioned the alleged offender. Id. On the
record before the Court there is no basis for a finding of
supervisory liability. Supervisory liability under §
1983 must be supported with evidence that: (1) the supervisor
had actual or constructive knowledge that his subordinate was
engaged in conduct that posed a pervasive and unreasonable
risk of constitutional injury to citizens like the plaintiff;
(2) the supervisor's response to the knowledge was so
inadequate as to show deliberate indifference to or tacit
authorization of the alleged offensive practices; and (3)
there was an affirmative causal link between the
supervisor's inaction and the particular constitutional
injury suffered by the plaintiff. See Shaw v.
Stroud,13 F.3d 791, 799 (4th Cir. 1994).
Defendant's response indicates Plaintiffs claim was taken
seriously and investigated. Moreover, there is no allegation